Custom, Excise & Service Tax Tribunal
Samsung India Electronics Pvt Ltd vs Noida on 20 February, 2019
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL
REGIONAL BENCH : ALLAHABAD
COURT No. I
APPEAL No. C/70998/2018-CU[DB]
(Arising out of Order-in-Appeal No. NOI-EXCUS-000-APP-1986-17-18
dated 28/03/2018 passed by Commissioner (Appeals), Central Goods &
Service Tax, Noida)
M/s Samsung India Electronics Pvt. Ltd. Appellant
Vs.
Commissioner of Customs & Central Tax, Noida Respondent
Appearance:
Shri Nishant Mishra (Advocate) for Appellant Shri Shiv Pratap Singh (Dy. Commr.) AR for Respondent CORAM:
Hon'ble Mrs. Archana Wadhwa, Member (Judicial) Hon'ble Mr. Anil G. Shakkarwar, Member (Technical) Date of Hearing : 20/02/2019 Date of Decision : 20/02/2019 FINAL ORDER NO. - 70329/2019 Per: Archana Wadhwa After hearing both the sides, we find that the appellant imported shipments of complete build up units i.e. Washing Machine, Refrigerator, Microwave Oven, LED TV, Air Conditioner etc. from M/s Samsung Electronics Korea. The said import was exempted under PTA Notification No.152/2009 subject to the production of a certificate under Comprehensive Economic Partnership 2 APPEAL No. C/70998/2018-CU[DB] Agreement indicating the place of origin of the goods. As at the time of import of the goods, appellant was not having the said CEPA Certificate with them, they did not claim the benefit of the said Notification and cleared the goods on payment of duty.
2. However, subsequently the said certificate was received by them with remark "issued retrospectively". As such based upon the said certificate, the appellant claimed the refund of Rs.1,97,318/- of duty of Customs paid at the time of clearance of the goods. The said refund stands rejected by the Authorities below on the ground that the assessment in the Bills of Entries has become final inasmuch as the appellant had not filed any appeal there against and in terms of the law declared by the Hon‟ble Supreme Court in the case of Priya Blue Industries Ltd. 2004 (172) E.L.T. 145 (SC) refund cannot be directly filed by the assessee. Secondly, the said refund claim was rejected on the ground that the certificate issued subsequent to clearance cannot be held to be available at the time of clearance of the goods and thus the condition of the Notification stands violated. Accordingly, refund claim was rejected by the Original Adjudicating Authority as also by Commissioner (Appeals). Hence the present appeal.
3 APPEAL No. C/70998/2018-CU[DB]
3. Learned advocate appearing for the appellant submits that an identical issue was the subject matter of the earlier order of the Tribunal reported as Commissioner of Customs, Central Excise & Service Tax, Noida vs. Samsung India Electronics Pvt. Ltd. 2018 (360) E.L.T. 91 (Tri.-All.) vide which their refund claims were allowed by observing that the subsequent procurement of the certificate would not result in denial of the said claims. The Tribunal order was appealed against by the Revenue before the Hon‟ble Allahabad High Court. The Hon‟ble High Court vide its decision reported as Principal Commissioner, Noida vs. Samsung India Electronics Pvt. Ltd. 2018 (361) E.L.T. 505 (All.) rejected the appeal filed by the Revenue laying down that certificate of origin issued subsequently with retrospective effect would cover the shipment of the goods imported prior to the issuance of the certificate. By drawing our attention to the issues involved in the appeal before the Hon‟ble Allahabad High Court learned advocate submits that the said issue stands decided by the Hon‟ble High Court.
4. As regards the non-challenge to bills of entries, he submits that inasmuch as they did not claim the benefit of the Notification at the time of import of the goods, there was no dispute between the importer and the 4 APPEAL No. C/70998/2018-CU[DB] Revenue. As held by the Hon‟ble Delhi High Court in the case of Aman Medical Products Ltd. vs. Commissioner of Customs, Delhi 2010 (250) E.L.T. 30 (Del.), subsequently followed in the case of Micromax Informatics Ltd. vs. Union of India 2016 (335) E.L.T. 446 (Del.), the law declared in the case of Priya Blue would be applicable when there would be „lis' between the importer and the Revenue where the said „lis' stands decided against the assessee and the assessee has not challenged the said decision of the Revenue. He submits that inasmuch as in the present case there was no „lis' between the parties as the appellant never claimed the benefit of the Notification, the ratio of law declared by the Hon‟ble Delhi High Court in the above two decisions would be applicable.
5. After hearing learned A.R. appearing for the Revenue, we find that the first issue stands covered by the Hon‟ble High Court decision in the same assessee‟s case referred supra. As such, the objection of the Revenue as regards the subsequent production of certificate cannot be upheld.
6. As regards non-challenge of bills of entries the ratio of law declared by the Hon‟ble Delhi High Court in the 5 APPEAL No. C/70998/2018-CU[DB] above referred judgments is duly applicable. Admittedly the appellant never claimed the benefit of the Notification in which case the question of denial of the same cannot arise and it can be safely concluded that there was no „lis' between the importer and the Revenue. In view of the above, we find no reasons to uphold the impugned order. Accordingly the same is set aside and appeal is allowed with consequential relief to the appellant.
(Dictated & Pronounced in Court)
Sd/- Sd/-
(Anil G. Shakkarwar) (Archana Wadhwa)
Member (Technical) Member (Judicial)
Lks